Creative and innovationStartups and ScaleupsTechnology
Good news for tech and innovative companies. But what is the risk?
A new Unitary Patent system was launched in the European Union on June 1, 2023. It introduces a new European jurisdiction for patent cases called the Unified Patent Court or UPC. The UPC will handle cases of alleged patent infringement as well as patent revocation proceedings.
Until now, obtaining a patent grant from the European Patent Office (EPO) meant only that the proprietor had the right to validate this patent in each member-state individually to obtain actual patent protection for their invention. This required every person who wished to obtain patent coverage in all 27 states to go through a validation procedure in each country separately.
The Unitary Patent system aims to lighten this burden on the business by providing for acquiring a singular patent valid and enforceable across the EU, without resorting to national patent offices.
Existing European patents which are validated in separate EU countries (also called “bundle patents”) will also fall under the jurisdiction of the UPC unless an opt-out is filed.
The UPC allows patent holders to seek protection of their EU patents in a single place, without having to seek local counsel for each national jurisdiction and have multiple simultaneous proceedings in different countries for one act of infringement. However, it also allows third parties to challenge bundle patents at the UPC and potentially invalidate them across Europe with a single court ruling.
This development is important, for example, for the tech and medical industries, as well as all businesses whose model is based on a strong intellectual property (IP) portfolio. It promises to lighten the bureaucratic burden and provide new opportunities but also introduces new risks to IP-oriented companies.
The new Unitary Patent and Court system will be of significance to you if your business, for example, is (but not limited to):
- • A Start-up focused on developing new technologies in the field of Artificial Intelligence (AI) and Virtual Reality (VR);
- • A medical research center developing cutting age medical equipment;
- • A manufacturing company which has created an entirely new and improved production method.
The UPC is a new institution and hence it lacks established practice, which introduces a degree of uncertainty. Under the prior system where national authorities and courts ruled on patent prosecution cases, there were different opinions adopted by each country’s office in similar cases. The UPC is expected to unify the practice of patent infringement proceedings, but its approach remains to be seen. Until practice accumulates there is a chance that certain cases might be treated unfavorably in regard to the rightful patent holder.
Depending on the value and strength of the patents you or your company own, there might be different approaches to this new development.
- If you are certain that your patent is “strong” (it is sufficiently distinct and inventive – such as a new language-based AI model) and it is unlikely that it can be successfully challenged, the UPC provides a great opportunity to protect the patent against infringement and bring forth proceedings against any third party located in the EU without having to resort to different national authorities in each member country.
- However, if you are not confident in the strength of your patent, or if it represents great value to your business (such as the patent covering your main product – for example, a new type of 3D printer, VR device, etc.), it might be better to minimize the risk of invalidation by opting out of the UPC. Bundle patents can be challenged before the UPC and unvalidated across all national jurisdictions which can have tough consequences for the IP portfolio of your business. Persisting with the current fragmented system can thus be a tool to limit this risk as your bundle patent would need to be separately challenged in each national jurisdiction separately, increasing your chances of maintaining a level of patent protection for your products.
However, in practice every business is different, and this requires a personalized approach and timely action. To ensure the higher survivability of your patents, and to minimize the risk of invalidation, YNG Legal’s team offers customized support based on thorough analysis. The quicker you act the lower the chance for your patents to be challenged on an international level.
Get in touch with us now to protect your patents. Send us a request on yankov@ynglegal.com.
